-71-
B. Comments Regarding the Introductory Statement and Brief
Introduction of The Five
The first two paragraphs of the introductory statement in
the STJ report regarding The Five do not include findings of fact
but rather represent a statement of the Special Trial Judge’s
understanding of respondent’s theory of the cases. A review of
respondent’s posttrial briefs reveals that the Special Trial
Judge misunderstood and/or misstated respondent’s position.
As an initial matter, the STJ report stated that it was
respondent’s contention The Five made payments “In return for
Ballard’s and Lisle’s services”. This statement suggests that
respondent asserted The Five were aware Ballard and Lisle were
using their influence to steer business to them and The Five
intended to compensate Ballard and Lisle for their actions. To
the contrary, respondent’s theory regarding the manner in which
the kickback scheme was carried out is articulated in
respondent’s Opening Brief at 568-567, as follows:
Suppose A says to B, “If I introduce you to C, and you
do business with C’s company, then I want 50% of
whatever money you make on the deal.” If B did
business with C, and, in turn, paid A 50% of what he
made, that is not a kickback. A received a finder’s
fee. However, further suppose, A went to C and said,
“Whatever business you give to B, I will give you a
percentage of the money B gives to me.” In this
situation, B may not even know about the arrangement
between A and C. B may believe he is getting business
from C because he does good work. Nevertheless,
respondent maintains that when C gives business to B
with the understanding that he will eventually receive
money generated by that business from A, that is a
kickback.
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